Feds Took Reporter's Notes During Unrelated Search, After They Spotted Documents She Had Obtained Via FOIA

from the weak-excuses dept

Remember how the feds said they were going to be more careful about respecting freedom of the press and such? Not that anyone really expected that to happen, but late last week there was a scary report about how DHS officials and Maryland police were sent to do a search of Paul Flanagan's house to make sure he had no guns -- since he's been legally prohibited from owning a gun due to previous legal issues. But, while in the house, the officials apparently searched Flanagan's wife's documents and seized a bunch. That's a problem because his wife, Audrey Hudson, is a journalist and they took a bunch of her private notes, many of which revealed journalistic sources.

Hudson claims that the search concerning her husband was nothing more than a ruse to uncover details of government sources she had quoted in a recent article about Air Marshals. While not definitive, there appear to be an awful lot of coincidences that lead to the seizure of her documents. First, one of the people on the "search" was with the Coast Guard Investigative Services, and the Federal Air Marshals are a part of the Coast Guard. Admittedly, Hudson's husband, Flanagan, works for the Coast Guard. However, the investigator who did the search asked Hudson if she had authored that particular article, so he was well aware of it going in. Furthermore, the search warrant was just about guns, so it seems odd that they'd go searching her computer. On top of that, the "excuse" given by the Coast Guard after all of this is incredibly flimsy:

"In the course of a joint Federal & Maryland State Police investigation, a lawful search warrant was served on August 6, 2013 in Shadyside, MD. The Coast Guard Investigative Service (CGIS) was asked to participate since the search involved a Coast Guard employee. During the course of the search, the CGIS agent discovered government documents labeled FOUO - For Official Use Only (FOUO) and LES - Law Enforcement Sensitive. The files that contained these documents were cataloged on the search warrant inventory and taken from the premises. The documents were reviewed with the source agency and determined to be obtained properly through the Freedom of Information Act. The CG employee was notified that the documents were cleared and the CG employee picked them up after signing for the documents."

Basically, for no clear reason, they decided that even though they were looking for guns, they would start rifling through her documents, and then seize them, even though they had been obtained through perfectly legal means. It is entirely possible that this was all coincidental, but it certainly would seem to create some fairly significantly chilling effects, yet again, for reporters.

That must have been quite the warrant, to include illegally owned guns and any official looking documentation they happened to find while searching for the guns.

I wonder if they bothered to describe the documents to be seized in the warrant(assuming they were even listed in it at all), or if they just went with a vague 'anything that catches your eye during the search'?

It was not an unrelated search, it was an unrelated warrant. They got exactly what they came and were searching for; her notes and sources. But, the only way they could do that, is on a semi trumped up warrant for a decades old charge against her husband."Flimsy" excuse, is a major understatement. It might as well be a completely made up excuse, because if they didn't have the decades old charge, they would have just made something up.

In an ideal world, this would be a textbook example of an illegal search and seizure by virtue of exceeding the search warrant. Those responsible would be fired, face criminal charges, and do jail time. Their case would become a common example told to new recruits of what not to do.

Hardcopy or softcopy?

I've seen a couple versions of this story, and I haven't seen a definitive answer...

Were the files takes actual physical papers, or did they seize her computer/hard drive?

Some of the articles imply that the investigators searched her computer, which totally wouldn't make sense as part of a gun search. But if the files were actual physical papers, and they found them as part of say, opening a desk drawer where a gun could reasonably be... well then thats a different situation.

Of course, in either case, it does certainly look like the gun search was BS to get at the reporter, but I'm curious about how far they went to break the rules...

Compensation

There should be such a high level of compensation when they do thing like this that they just do not do it. I think 5 million is a good starting point for compensation to come from the existing budget and a written apology from the president with confirmation from him that he will restrict the NSA from any further actions by the police or other agencies from doing the same in the future.

Then the people involved in the action must be fired and not allowed to have any employment where restricted material is in their grasp, no political or governemetn or even private data collection agencies can hire them, they give up all college degrees and start again with a high school qualification.

Re:

Re: Hardcopy or softcopy?

A link from the cited link shows a picture of the physical documents seized during the search. You can plainly see how a folder of papers can be mistaken for a firearm. Thank God I only use a laptop, which as everybody knows can only be mistaken for a pan of lasagna.

I have several issues with the incident beyond the whole evil government thing.

1) Lady is an investigative reporter whose reporting in the past has made some people mad.2) Cops with a search warrant for her husband's gun show up.3) Lady who has pissed people off doesn't immediately call her lawyer. While a lawyer couldn't stop the warrant, he would be there as an extra witness and might have kept the woman's personal papers (which were obviously not guns) from being seized.4) Lady who has pissed people off has the oh-so-important seekrit papers unsecurely stored in her home. A personal safe would have kept her papers secure long enough to keep from being immediately seized. (and the lawyer she didn't call would have been instrumental here) Or she should have stored said docs off-site.5) Overall, the Lady who has pissed people off completely failed to think ahead and makes me wonder just how good an investigative reporter she really is.

27 years later...

You missed the part where the search warrant was justified by a her husband resisting arrest in 1986.

So 27 years, yep that seems reasonable.

--snip--The document notes that her husband, Paul Flanagan, was found guilty in 1986 to resisting arrest in Prince George’s County. The warrant called for police to search the residence they share and seize all weapons and ammunition because he is prohibited under the law from possessing firearms.

Re:

4) Lady who has pissed people off has the oh-so-important seekrit papers unsecurely stored in her home. A personal safe would have kept her papers secure long enough to keep from being immediately seized. (and the lawyer she didn't call would have been instrumental here) Or she should have stored said docs off-site.

Terrorism

This is what terrifies me. Not that my house will be searched, or that I'm interesting to the government in any way. (Some nerdy middle-class dork with a wife and kids living in a little midwest town?) It's that this is the kind of governmental overstepping that can lead to armed conflicts.I don't want to see violence in the middle-east. I don't want to see it anywhere else, either. And I don't want to see it when I walk out of my door to mow the lawn.Please, let's not start the ball rolling.

Re:

An investigative reporter should be ruffling someone's feathers. As to thinking ahead about protecting sources, it is a sad comment on the state of our nation that any reporter could be expected to anticipate this kind of action.

Also, good job on blatantly padding your list of issues from two to five.

Re:

So, let's be careful here. The rules say that if they enter the premises with a warrant for X, and they see Y, and Y is evidence of a crime unrelated to X, then they can seize Y.

However, what is not at all clear is, as the article states, why they were going through the wife's computer or papers looking for the husband's guns. That sounds like it was a violation of her 4th amendment rights.

Re: Re: Hardcopy or softcopy?

This sort of situation happens all the time, sometimes even without a warrant. Consider this situation.

Police are called to a house for a disturbance related to possible domestic violence. While answering the call they happen to notice illegal drugs lying in plain site while they are in the house. They take them for evidence and arrest the person who is there for possession. They don't need a search warrant for that as they were in plain site. Now, if they want to search the house further, they will then either need to get consent or obtain a warrant which they can easily do.

I think this is the sort of situation that they are claiming. They were there to search for guns and ammunition and had a warrant that allowed that. While conducting that search they saw something that appeared to them to be illegally possessed government documents which they confiscated only to find out later that they were not illegally possessed.

The real question lies in what was the evidence that was presented of probable cause to get the warrant for the arms violations. The fact that he had a case that was more than two decades old that prohibits him from owning firearms is not enough. What is the reason they presented to believe he had them then?

Re: Re: Hardcopy or softcopy?

It's funny you mention that a laptop can only be mistaken for a pan of lasagna... 2 years ago my apartment was broken into and they left my netbook sitting on the coffee table and my fiancees big laptop sitting on the dinner table BUT they took all my scotch AND a half of a leftover lasagna out of the fridge. They couldn't even make it out the door without eating it because there was a trail of sauce from the fridge to the front door...

Re: Re: Re:

A large part of the reason for passing amendments to the Constitution to protect the press, free speech and privacy. It is sad that we have fallen so far from protecting those rights. Should we actually be willing to adhere to these values, the practice would be considered paranoid.

Also, I contend that exposing disingenuity is never entirely unnecessary.

Re: Re: Hardcopy or softcopy?

If you have physical documents, best bet is to store them off-site in a safe-deposit box or with a lawyer you trust. That puts an extra layer between the officials and the documents that'll slow them down and force them to create a paper trail. They'll still get them if they really want them, but they won't be able to do so on the QT.

Better idea is to convert all the documents to digital and invest in some hot-swap drive bays. Set the drives up with full-drive encryption where the passphrase has to be manually entered every time the drive's attached, and pull the drives out of the computer when not in use. They can still get the drives, but cracking the encryption's a technical challenge that you can control by what software and key strength you use and you can force the creation of a paper trail if they want to force you to divulge the passphrase. Again it won't stop them if they're determined, but it'll stop them from doing so surreptitiously.

And as noted above, prepare a cover. To quote from the advice for the Evil Overlord's accountant, have 3 sets of books: one squeaky-clean set to show to the auditors when they come calling, a second set (appropriately untidy, as if you'd been unprepared to have it found) that has some stuff that appears questionable at first glance but upon investigation is perfectly legal even if a bit sleazy to show the auditors in the event they find that the first set isn't true, and a third set showing the actual accounts that you can show the Overlord at need (said set being stored in a locked, armored filing cabinet packed with thermite wired to a self-destruct button should there be a pressing need to be really sure the auditors don't find them).

Re: Re: Re: Hardcopy or softcopy?

Illegally possessed government documents aren't usually redacted, are they? And it's not as if DHS has never heard of the Freedom of Information act. Any claim as to the documents being considered illegal at the time of seizure falls flat on its face.

Re: Compensation

Exactly. THIS is where we should have zero-tolerance policies, not with grade school students playing cowboys and indians.Everyone who authorized or complied with this absurd example of tin-plated dictatorship should have their lives completely ruined. Bank accounts seized and property repossessed to cover that 5 million fine, and a minimum of life imprisonment without possibility of parole.Perhaps if a few dozen wannabe despots went down in flames, we'd start seeing a little professionalism and self-restraint in law enforcement again.

Welcome to the new Amerika where there is absolutely no accountability for law enforcement. They can do whatever they like and resisting them is a crime.

Sadly, most people today seem to see nothing wrong with this. I have a friend who I mention this kind of stuff to and every time his response is "So what? Are you hiding something from the government? No? Then it shouldn't concern you." :(

The search warrant for the raid, issued to Maryland State Trooper Victor Hodgin by a district court judge, made no reference to the documents. A copy obtained by The Times indicates that the search was to be narrowly focused on the pursuit of “firearms” and their “accessories and/or parts,” as well as any communications that that might be found in Ms. Hudson and Mr. Flanagan’s home related to “the acquisition of firearms or accessories.”

The documents seized were printed documents and not files on a computer. The did seize guns that were registered to Ms. Hudson. The agents claimed that she was not allowed to possess guns because her husband had been convicted of resisting arrest for an incident in 1985. The thin justification starts with an on-line purchase of a silencer for a machine gun from Sweden. Paul Flanagan claims this was a potato launcher but law enforcement is claiming that "potato gun" is slang for a silencer. There is more investigation by the Coast Guard, who Flanagan works for, and evidence from acquaintances that Flanagan possessed gun himself. The warrant allowed them to look for documentation but they also knew that Ms. Hudson was a journalist before the raid started. That fact should have constrained their search of her documents. The agents assume that documents labelled "for official use only" and "law enforcement sensitive" were obtained illegally and seize them. What really seems unjustified is their seizure of the related notes by Ms. Hudson. They had to know these were journalistic notes.The Washington Times is filing a lawsuit. This might seem risky for Paul Flanagan considering his case is still being investigated. I suspect Flanagan and his wife and their lawyers have figured out that there is not much of a case against him and that the misdeeds of the Coast Guard/Maryland State Police can be pursued.

Re:

Except for this line you might be correct.

"as well as any communications that that might be found in Ms. Hudson and Mr. Flanagan’s home related to “the acquisition of firearms or accessories."

As that line was in the search warrant they were allowed to search anywhere a document or communication related to "the acquisition of firearms or accessories." That is a very large amount of places and includes her files.

However, I still believe this is wrong as her files are protected under the 1st Amendment as journalist and should have required a second warrant. i.e. they were searching through the files came across those exited the house stating they were securing the house for a second warrant for those files.

Re: Re: Re:

Re: 27 years later...

The question is what led the police to investigate the husband for a," crime?" that happened 27 years ago, and to think he was armed today, then you go to how the coast guard got involved, I smell a major lawsuit coming and a lot of governmentexplaining to do. If this was a simple local case why was the fed included in the seach team, this smells very bad.